Dickens v State of New South Wales

[2017] NSWSC 1173

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Dickens v State of New South Wales & Ors [2017] NSWSC 1173

Hearing dates:

9 August 2017

Date of orders:

05 September 2017

Decision date:

05 September 2017

Jurisdiction:

Common Law

Before:

Fagan J

Decision:

Proceedings dismissed as against second and third defendants as disclosing no cause of action.
Statement of claim dismissed as against first defendant with leave to re-plead, subject to limitations.

Catchwords:

PRACTICE AND PROCEDURE – pleadings – application to strike out statement of claim – Uniform Civil Procedure Rules 2005 (NSW), r 14.28 – form of pleading embarrassing and prejudicial to defendant – leave granted to re-plead.

 

PRACTICE AND PROCEDURE – summary dismissal – Uniform Civil Procedure Rules 2005 (NSW), r 13.4 – no maintainable cause of action disclosed – collateral attack on judgement and orders of the Family Court.

  TORTS – intentional tort – Wilkinson v Downton – alleged mental and emotional harm arising from making and enforcement of Family Court orders – whether defendants liable for procuring Family Court orders – collateral attack on Family Court orders not permissible – advocate’s immunity – no recognised psychiatric illness

Legislation Cited:

Civil Procedure Act 2005 (NSW)
Court Suppression and Non-publication Orders Act 2010 (NSW)
Family Law Act 1975 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Attwells v Jackson Lalic Lawyers [2016] HCA 16
Bunyan v Jordan (1937) 57 CLR 1
Bynoe v. Bank of England [1902] 1 KB 467
Cabassi v Vila (1940) 64 CLR 130; [1940] HCA 41
Cachia v Westpac Financial Services Ltd [2005] NSWCA 239
Clavel v Savage [2013] NSWSC 775
D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12
Giller v Procopets (2008) 24 VR1; [2008] VSCA 236
IEL Finance Ltd v Commissioner of Taxation [2010] FCA 898
Janvier v Sweeney [1919] 2 KB 316
Kirby v Sanderson Motors Pty Ltd (2001) 54 NSWLR 135; [2002] NSWCA 44
Magill v Magill (2006) 226 CLR 551; [2006] HCA 51
Markisic v Department of Community Services of New South Wales [2005] NSWSC 1373
Markisic v Department of Community Services of New South Wales (No 2) [2006] NSWCA 321
Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471; [2007] NSWCA 377
Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198; [2001] NSWCA 142
Stevens v Rowe (1880) 47 Am Rep 231
Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35
Wainwright v Home Office [2004] 2 AC 406
Wilkinson v Downton [1897] 2 QB 57

Category:

Principal judgment

Parties:

Mr Dickens (plaintiff)
State of New South Wales (first defendant)
Nicola Mary Adams (second defendant)
Paddy James Moylan (third defendant)

Representation:

Counsel:
Mr Dickens (plaintiff, in person)
Mr Edward Anderson (first defendant)
Mr David Lloyd (second defendant)
Mr Bruce McClintock SC/Mr Patrick Meagher (third defendant)

  Solicitors:
Makinson d’Apice Lawyers (first defendant)
Mullane & Lindsay (second defendant)
Yeldham Price O’Brien Lusk (third defendant)

File Number(s):

2017/069511

Judgment

1. All three defendants in these proceedings have applied by notices of motion to have the plaintiff’s claims against them respectively dismissed as disclosing no cause of action (r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). Alternatively each defendant seeks an order that the plaintiff’s statement of claim be struck out under r 14.28 of the UCPR. The third defendant also applies to have the proceedings against it stayed as an abuse of process, invoking the Court’s inherent power and s 67 of the Civil Procedure Act 2005 (NSW).

2. The plaintiff’s statement of claim filed 6 March 2017 claims damages for mental harm said to have been occasioned to him by the execution and enforcement of certain orders made in the Family Court of Australia in proceedings between the plaintiff and his former wife. The couple commenced a relationship in 1991, married in 1995, had two sons (born in 2001 and 2003), separated in late 2008 and divorced in 2010. Proceedings between them concerning the parenting of the two boys commenced in 2010 and are continuing.

3. The plaintiff alleges that actions of the New South Wales police (in relation to which the State of New South Wales is sued) and of the second and third defendants (solicitors who represented the wife and the interests of the children respectively in the Family Court) led to that court making the orders which he says caused him mental harm. I use the expression “mental harm” advisedly as the plaintiff appears only to allege distress and emotional disturbance, not psychiatric disorder of a recognised kind. He alleges that the defendants acted with intent to cause him harm, giving rise to an action for the intentional tort identified in Wilkinson v Downton [1897] 2 QB 57 and recognised in Bunyan v Jordan (1937) 57 CLR 1 and in Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471; [2007] NSWCA 377.

4. In broad terms the basis of each defendant’s application for dismissal is that the orders of the Family Court were validly made and have never been set aside or declared void. The defendants contend that a claim for damages alleged to have flowed from such valid court orders is not maintainable. They say that by prosecuting such a claim the plaintiff is necessarily calling in question the validity of the Family Court’s orders, because actionable damages could not arise under valid orders of a court of competent jurisdiction. The plaintiff by his statement of claim does not assert that the Family Court orders are amenable to being set aside or declared invalid. It would be futile for him to do so as this Court would not purport to grant such relief: Markisic v Department of Community Services of New South Wales [2005] NSWSC 1373 at [32].

5. The Family Court has published orders and reasons, following numerous contested hearings, ascribing to the plaintiff the pseudonym “Dickens”. His former wife has also been referred to by that surname. The purpose of this has been to protect the identity of the two children of the marriage, who are both still under 18 years of age. By orders made in chambers on 8 June 2017 Davies J directed that pseudonyms be used in these proceedings as a means of coordinating with the Family Court’s measures to protect the two children from harmful publicity of their parents’ dispute. His Honour relied upon s 8(1)(c) of the Court Suppression and Non-publication Orders Act 2010 (NSW).

6. On 9 August 2017 at the commencement of the hearing of the defendants’ notices of motion I varied Davies J’s order in one respect. Namely, by changing the pseudonym for the plaintiff and his former wife to the same pseudonym as used in the Family Court. In the interests of open justice this will facilitate coherence in the issuing of this Court’s decision, by enabling the manner in which the Court deals with the defendants’ applications to be understood in the context of the numerous published decisions of the Family Court. I am satisfied that the use of consistent pseudonyms for the plaintiff and his former wife, to enable the judgment of this Court and the judgments of the Family Court to be read together, will not make either the parents or the children identifiable.

Statement of claim and proposed amended statement of claim

7. The plaintiff is self represented and not legally trained. The statement of claim filed 6 March 2017 does not conform to the requirements of a pleading under the UCPR. It is highly repetitive and contains a great deal of argument, as opposed to assertion of fact or even identification of the alleged effect in law of the facts pleaded (see Kirby v Sanderson Motors Pty Ltd (2001) 54 NSWLR 135; [2002] NSWCA 44 at [20]-[22] per Hodgson JA; Markisic v Department of Community Services of New South Wales (No 2) [2006] NSWCA 321 at [36]). It extends over 69 pages. The document does not distinctly plead the plaintiff’s case against each defendant separately. Significant embarrassment and difficulty would be imposed upon each defendant if they were required to plead a defence to this document. The unorganised mass of assertions contained therein causes inherent uncertainty as to which particular assertions require response.

8. I consider it would be futile merely to strike out the statement of claim under r 14.28. The plaintiff has intimated he would seek leave to re-plead. In an attempt to meet some of the criticisms made in the defendants’ written submissions in support of their notices of motion he prepared an amended statement of claim which he sought leave to file upon the hearing of the motions. The principal changes incorporated in the amended document are:

1. the addition of par 7, referring to the plaintiff’s affidavit sworn 13 June 2017 and filed in this Court;

2. reference to parts of the plaintiff’s affidavit and exhibit, in various parts of the pleading;

3. immediately following par 7, the addition of a table of what the plaintiff contends are the elements of the tort of intentional infliction of harm which he alleges against all three defendants;

4. deletion of some factual allegations which are not relevant to the cause of action for intentional infliction of harm and

5. deletion of some extended quotations from transcript of proceedings in the Family Court.

9. These changes, if allowed by a grant of leave to file the amended document, would not significantly ameliorate the pleading deficiencies of form referred to at [7]. As the thrust of each defendant’s application is that there are irremediable flaws in the case which the plaintiff wishes to bring, it appears the most practical course is to ascertain from both the original statement of claim and the proposed amended document what causes of action the plaintiff is endeavouring to formulate and to determine whether they are maintainable as a matter of substantive law. This will obviate the unpromising alternative of striking out the pleading, refusing leave to file the amended document (which is in no better form) and perhaps granting leave to amend in the hope of a pleading being produced in a form to which the defendants could reasonably be expected to respond.

Facts alleged

10. It can be gleaned from the statement of claim and the proposed amended pleading that the plaintiff alleges the following facts against all three defendants. Under separate headings below I will summarise additional allegations specific to each of the defendants respectively.

1. As at mid March 2014 an order of the Family Court required that the plaintiff’s two children reside with their mother and that the younger son “spend time with his father on a day time basis”.

2. On Saturday, 15 March 2014 the younger son, then aged 10½ years, was in the plaintiff’s care, under the terms of the above-mentioned order, at the plaintiff’s apartment at Rose Bay.

3. On 15 March 2014 the plaintiff took his son to Balmain police station and complained that the boy had been recently assaulted by his former wife’s new partner. A mark on the boy’s lower back was identified.

4. Police interviewed the plaintiff and his son separately. Detective O’Donnell advised the plaintiff on 15 March 2014 that police rejected the complaint and that the plaintiff should return his son to the former wife in accordance with the Family Court order then in force.

5. The plaintiff did not return the boy to his mother, either on that day or over the next three days. On 17 March 2014 the plaintiff provided to police at Balmain a medical report on the boy and colour photographs of the mark on his back.

6. On 17 March 2014 Detective Franklin at Balmain instructed the plaintiff to return his son to the former wife in accordance with the Family Court order and warned that if this was not done the plaintiff could be charged with abduction. The plaintiff kept the boy in his own care, contrary to the order.

7. On 18 March 2014 the second defendant, as solicitor for the former wife, made an urgent ex parte application to the Family Court for an order to be directed to the Marshall of the Court and to all officers of the Australian Federal Police and of the police forces of the States “to find and recover” the plaintiff’s younger son and “to deliver” him to the former wife.

8. The third defendant, who at that time held an appointment under s 61L of the Family Court Act 1975 (Cth) as Independent Children’s Lawyer for the interests of the two children of the marriage, was notified by the second defendant of the ex parte application and he appeared by telephone and supported it.

9. The plaintiff alleges that police, in some manner which is not made clear, “instigated” and “supported” the former wife’s application for the recovery order.

10. On 18 March 2014 Johnston J made an ex parte order as sought by the former wife, to the effect summarised at (7) above.

11. In execution of the order police from Rose Bay station attended the plaintiff’s apartment at 8:10 pm on 18 March 2014, recovered the boy and returned him to his mother. The plaintiff claims that he suffered mental harm as a result of seeing his son recovered from his care by police under this order.

12. On 26 March 2014 the proceedings were returnable before the Family Court. Orders were then then made which suspended the plaintiff’s contact with his sons on an ongoing basis. Orders to that effect continued in force during the remainder of 2014 and into 2015.

13. The plaintiff claims that he has suffered stress and emotional upset at being denied contact with his sons under the terms of these ongoing orders of the Family Court.

Case against the first defendant (for actions of the NSW police)

11. In explaining his case during oral argument on the defendants’ notices of motion the plaintiff said he claims to have suffered psychiatric damage and/or emotional distress as a result of the following actions of the New South Wales police (all references are to sub pars of [10]):

1. Detective O’Donnell told him at Balmain police station on 15 March 2014 that he should return his younger son to the former wife in accordance with the Family Court order which was then operative: see (4).

2. Detective Franklin instructed him on 17 March 2014 that he should return the boy and that he could be charged with abduction if he did not: see (6).

3. Rose Bay police executed the recovery order on the evening of 18 March 2014: see (11). The plaintiff seeks to hold the police responsible for the making of the order as well as for its execution, alleging that they “instigated” and “supported” the ex parte application on behalf of the former wife: (9).

4. The police failed to pursue their investigation of the younger son’s complaint of 15 March 2014 until 12 June 2014 when, following representations by the plaintiff, they interviewed the boy.

5. On 8 July 2014 Detective O’Donnell wrote to the plaintiff advising “there is insufficient evidence in relation to the alleged assaults upon [the younger son] by [the former wife’s new partner] as reported by you”. The letter stated that the police investigation was complete and “no further action will be taken”.

6. On 28 July 2014 police produced to the Family Court under subpoena certain documents but subsequently uplifted the documents stating they had been produced in error. On 4 September 2014 the plaintiff issued a subpoena of narrower scope and documents produced thereunder could not be examined by the plaintiff until mid January 2015.

12. The plaintiff’s statement of claim contains detailed allegations of misconduct by the former wife and her partner prior to 15 March 2014 which it is said police did not investigate or prosecute. There are allegations that police official records of investigation into alleged wrongdoing of the former wife and her partner have been falsified. Sundry allegations of police breaches of duty are made. All of this is irrelevant to any cause of action for damages capable of being discerned amongst the mass of factual assertions in the pleading. This applies equally to the proposed amended statement of claim.

13. Only item (c) of the impugned police actions summarised at [11] is apparent from either version of the plaintiff’s statement of claim. The other items did not emerge until he opened his case on the notices of motion, orally. Accordingly, in the written submissions in support of the first defendant’s notice of motion, counsel identified deficiencies in the plaintiff’s putative cause of action formulated as a case of wrongful procurement of a court order and execution of that order, with intent to inflict harm. For reasons developed below I uphold the first defendant’s submissions in this respect and find that the cause of action so framed is not maintainable.

14. Counsel for the first defendant was not prepared to address, upon the hearing of the notices of motion, causes of action based upon alleged intentional causation of harm by actions of the police other than procuring and enforcing the Family Court’s recovery order. Namely, their actions of rejecting the plaintiff’s and his son’s allegation of assault, directing that the boy should be returned to his mother in accordance with the existing parenting orders of the Family Court, terminating their investigation without laying a charge and producing their records under subpoena belatedly. That is, the cases based upon alleged actions of the police summarised at subpars (a), (b) and (d) – (f) of [11].

15. It would not be practical for the first defendant to argue its application for dismissal of the proceedings by reference to the plaintiff’s case based upon the allegations in subpars (a), (b) and (d) – (f) of [11] unless and until that case has been re-pleaded separately from the case based on subpar (c) and separately from the allegations against the second and third defendants, all of which I propose to dismiss under r 13.4. I will grant the plaintiff limited leave to file an amended statement of claim against the first defendant only. I see formidable obstacles to the viability of a claim based upon the police actions alleged in subpars (a), (b) and (d) – (f) of [11] but I will not decide that issue without the benefit of argument from the first defendant on it.

Case against the second defendant: recovery order made 18 March 2014

16. The plaintiff alleges that the second defendant was the former wife’s solicitor from May 2013 until 25 January 2016. He asserts that on 18 March 2014 when making the ex parte application for the recovery order the second defendant made knowingly false statements to Johnston J and intentionally omitted material matters, thereby deliberately misleading the Family Court and procuring the recovery order in fraud of that court. Particulars of the statements and omissions are that the second defendant told the court she had no mobile phone number for the plaintiff, that she claimed not to have been aware until that morning that the third defendant had been reappointed as Independent Children’s Lawyer by order of 14 January 2014 and that she asserted the plaintiff had not complied with earlier orders requiring him to receive psychotherapy.

17. The plaintiff further alleges that the second defendant’s conduct, including the alleged misleading of the Family Court on 18 March 2014, was “dishonest, reckless and malicious” and that it “caused harm to the plaintiff and damaged his relationship [with] his children”. He asserts that the second defendant intended to cause him harm by her conduct complained of and that she did in fact do so. Namely, mental and emotional harm which flowed from witnessing the execution of the recovery order on the evening of 18 March 2014 and from having his contact with both sons cut-off.

Case against second defendant: orders of 4 and 16 September 2014

18. A second putative cause of action is pleaded by the plaintiff in relation to a hearing in the Family Court on 4 September 2014. The parties’ parenting dispute was before the court that day for consideration of whether a particular child psychologist should be re-appointed to assess and counsel the two boys. The former wife sought this re-appointment but the plaintiff opposed it. The plaintiff at that time applied to the court to resume contact with his sons.

18. The plaintiff alleges that a letter which the second defendant had written to the third defendant on 2 September 2014 and which she tendered to the Family Court on 4 September contained a deliberate misrepresentation that the younger of the two boys was facing disciplinary action at his school. The plaintiff alleges that the tender of this erroneous information caused the Court to make an order on 4 September 2014 in these terms:

That pending further order there is to be no time spent or communication between the children and their father.

20. During a further hearing on 16 September 2014 the second defendant is said to have acknowledged that her letter had been inadvertently in error and that it was the older boy whose behaviour at school had brought him under notice. The plaintiff alleges that the second defendant’s letter of 2 September 2014 was equally incorrect insofar as it may have been intended to convey that the older boy faced disciplinary action. It is asserted that the original error and the purported correction “resulted in” an order made on 16 September 2014 as follows:

That pending further order there be no time spent between the [younger child] and his father.

21. Again it is alleged with respect to the orders of 4 and 16 September 2014 that the second defendant acted with intent to cause the plaintiff harm or with reckless indifference regarding that consequence and that she acted without lawful justification and in a manner such that harm to the plaintiff was the likely outcome.

22. In oral submissions the plaintiff said that the making of these orders on 4 and 16 September 2014 caused him emotional upset because the orders deprived him of contact with his children. That does not appear in the pleading but I approach the second defendant’s application to dismiss the proceedings on the basis that if the plaintiff otherwise had a viable cause of action he could apply for leave to amend in this respect. The plaintiff has not alleged either in the pleadings or in oral argument that the harm he suffered from the orders of 4 and 16 September 2014 was in the nature of a recognised psychiatric disorder. However, even if that were alleged there would remain the fundamental defect that a cause of action which rests upon damage having been sustained under the enforcement of orders of a court of competent jurisdiction cannot be maintained – as explained below.

23. When asked during oral argument to list exhaustively the events which are alleged to have caused him psychological or psychiatric damage through conduct of the second defendant the plaintiff identified only the making of Family Court orders which have prevented or limited contact between him and his sons. It is not alleged that any of these orders has ever been set aside.

Sundry allegations against the second defendant

24. The plaintiff’s pleadings contain numerous allegations that the second defendant breached the solicitors rules of practice and engaged in conduct which showed that she is “not a fit and proper person to engage in legal practice”. These professional misconduct allegations are superfluous to any putative cause of action which may be discerned from the pleadings. There are many other disconnected allegations of actions taken by the second defendant in the course of the Family Court litigation. None of these are tied in with other alleged facts or circumstances so as to plead any complete cause of action.

25. For example there is a specific allegation of improper conduct of the second defendant in obtaining from the New South Wales police an event report on or about 29 May 2014. This assertion stands in isolation and no actionable result or consequence is alleged. A second example is an allegation by the plaintiff that the second defendant, on one occasion in the course of the Family Court proceedings, was untruthful regarding her ability to forward an expert psychologist’s report (par 137).

Case against the third defendant: recovery order of 18 March 2014

26. In the ex parte application on 18 March 2014 the third defendant appeared before the Family Court by telephone when given notice of the hearing at the direction of the judge. It is alleged by the plaintiff that the third defendant “intentionally withheld” from the court an email the plaintiff had sent on 17 March 2014 to both the second and third defendants and to the police asserting that his younger son did not want to return to the former wife because her partner “keeps hurting him” and that the boy would remain in the plaintiff’s care.

27. It is alleged by the plaintiff that the third defendant supported the former wife’s application for a recovery order. The plaintiff says that the third defendant’s conduct at the hearing in these respects caused the recovery order to be made and that this was deliberate, with intent or reckless indifference as to causation of harm to the plaintiff. As with the allegations against the first and second defendants the plaintiff asserts that the making of the 18 March 2014 recovery order in fact caused him harm, upon its execution. The plaintiff does not specify a recognised psychiatric condition.

Case against the third defendant: Family Court hearings March/April 2014

28. The plaintiff alleges that when the proceedings were back before the Family Court after execution of the ex parte recovery order, on 26 March 2014 and 28 April 2014, the third defendant pressed for continuation of orders which would forbid contact between the plaintiff and his younger son or alternatively orders under which such contact would be supervised. It is claimed that in adopting this position the third defendant “ignored” and “was silent about” evidence from the plaintiff regarding the alleged assault on the son by the former wife’s partner shortly before 15 March 2014. In these respects the third defendant’s conduct is said to have been deliberate and either intended to cause harm to the plaintiff or carried out with reckless indifference as to whether harm would be caused. The harm is said to have been emotional upset and damage to the plaintiff’s relationship with his children.

Case against the third defendant: Family Court orders 1 March 2016

29. It is alleged that on 9 May 2014 the third defendant falsely informed New South Wales police that the Family Court had on an earlier occasion found that the plaintiff had coached his children to fabricate incidents in which they were physically harmed. The plaintiff says that this assertion to police was then placed before the Family Court during a hearing on 20 May 2015 and resulted in orders being made on 1 March 2016 which “caused the plaintiff harm and damaged his relationship [with] his children”. It is alleged that this harm was intended by the third defendant or that he acted with reckless indifference to it as a likely outcome.

30. The orders made on 1 March 2016 provided for a report to be prepared by a nominated psychiatrist regarding competing parenting proposals in respect of the two children. At the same time an application by the plaintiff to discharge the appointment of the third defendant as a Independent Children’s Lawyer was dismissed.

Elements of the tort recognised in Wilkinson v Downton

31. For the purpose of determining the defendants’ notices of motion it is not necessary that the Court should examine rigorously or exhaustively authorities regarding the tort of intentional infliction of harm, upon which the plaintiff solely relies. A short summary of the elements of the tort, without definitive analysis of precise limits where there is uncertainty in the cases, will suffice.

32. In Wilkinson v Downton the defendant had falsely told the plaintiff that her husband was seriously injured and lying in hospital. This caused her “violent shock” with serious permanent physical and psychiatric consequences. Wright J said at pp 58 – 59:

The defendant has, as I assume for the moment, willfully done an act calculated to cause physical harm to the plaintiff – that is to say, to infringe her legal right to personal safety, and has in fact thereby caused physical harm to her. That proposition without more appears to me to state a good cause of action, there being no justification alleged for the act. This wilful injuria is in law malicious, although no malicious purpose to cause the harm which was caused nor any motive of spite is imputed to the defendant.

It remains to consider whether the assumptions involved in the proposition are made out. One question is whether the defendants act was so plainly calculated to produce some effect of the kind which was produced that an intention to produce it ought to be imputed to the defendant, regard being had to the fact that the effect was produced on a person proved to be in an ordinary state of health and mind. … The other question is whether the effect was, to use the ordinary phrase, too remote to be in law regarded as a consequence for which the defendant is answerable.

33. Separated into point form the elements appear to be:

1. a wilful (or deliberate) act by the defendant;

2. the act is calculated to cause physical harm to the plaintiff (meaning – having regard to the usage of the word “calculated” in the second paragraph of the above extract – an act of a nature which inherently would likely cause physical harm);

3. physical harm is in fact caused to the plaintiff by the defendant’s act;

4. there was no lawful justification for the defendant’s act and

5. the harm suffered is not too remote.

34. The second paragraph of the passage quoted at [32] from Wilkinson v Downton appears to require that the defendant’s act must be so clearly “calculated” to cause harm (in the sense referred to in element (ii) at [33]) that the court may impute to the defendant an intention to cause it. In Magill v Magill (2006) 226 CLR 551; [2006] HCA 51 at [117] Gummow, Kirby and Crennan JJ understood Wright J’s judgment in this sense, thus not requiring that the plaintiff prove a subjective intent on the part of the defendant to cause harm. See also Wainwright v Home Office [2004] 2 AC 406 per Lord Hoffman at 424 and Giller v Procopets (2008) 24 VR 1; [2008] VSCA 236 per Maxwell P at [32].

35. On the other hand, in Bunyan v Jordan Latham CJ (at pp 10-11) seems to have treated Wilkinson v Downton and also Janvier v Sweeney [1919] 2 KB 316 as cases where intention to cause harm was found as fact by inference from the nature of the defendant’s act, rather than as cases where intent was constructively imputed. In Bunyan v Jordan it was sufficient to dispose of the appeal that the majority found the acts of the defendant (namely, stating he would shoot someone, producing a revolver and going into a nearby thoroughfare to discharge the weapon) were not “calculated or likely to cause harm to any person” (per Latham CJ at p 12). See also Rich J at p 15, Dixon J at p 16 and McTiernan J at p 18. It was not necessary for the court to rule whether Wilkinson v Downton is good law in Australia nor to expand upon the subjective or constructive character of the defendant’s intent to cause harm.

36. In Nationwide News Pty Ltd v Naidu Spigelman CJ noted the absence of definitive High Court authority regarding the modern day relevance of the tort formulated in Wilkinson v Downton and concluded as follows:

[73] The position in Australia appears to be that identified by Gleeson CJ in Magill v Magill at [20]. His Honour referred to Wilkinson v Downton and Janvier v Sweeney as cases which “would probably now be explained either on the basis of negligence, or intentional infliction of personal injury”. As in the case of negligence, the requirement of “personal injury” means the test does not extend to any form of psychological damage but requires a recognised psychiatric condition. (Cf Hunter v Canary Wharf Ltd [1997] UKHL 14; [1997] AC 655 at 707.)

37. Spigelman CJ further noted the courts had not determined whether element (ii) (referred to above at [33]) involves that the consequence of physical harm must be “calculated” in the objective sense (as I have interpreted the words of Wright J) or in the sense of consciously intended. On this issue the Chief Justice made these observations:

[79] This issue has not been determined authoritatively. It does appear that an actual subjective intention is not required. Indeed, the formulation in Wilkinson v Downton at 59 refers to an “imputed intention”. (See also the reference by Latham CJ to the result that was “naturally to be expected” in Bunyan v Jordan at 11).

[80] It is not necessary, in this case, to decide, as McMurdo P suggests in Carrier v Bonham [2001] QCA 234; [2002] 1 Qd R 474 at [12], that “calculated” means “likely to have that effect”. It may be that it is sufficient if the result satisfied a test of “substantial certainty”. (See F Trindale, P Cane and M Lunney, The Law of Torts in Australia 4th ed (2007) Oxford Uni Press, Melbourne at 40-41.) However, a test of reckless indifference to a result will, in this context, satisfy the requirement of intention. (See Trindade et al at 41-42, 48, 56.) In the present case, the findings [at first instance] establish such reckless indifference and that is sufficient to establish intention, just as it is in the criminal law.

38. I understand the dicta of Spigelman CJ at [80] to mean that, if liability for the tort depends upon proof of a state of mind in the defendant going beyond the requirement that his or her acts be of a nature inherently likely to cause harm, then it will be sufficient if either the defendant intended harm of the nature actually caused or the relevant acts were done with reckless indifference to whether such harm might result, in circumstances where they were objectively calculated to cause harm.

39. On current authority a plaintiff invoking the tort would have to be able to prove that he or she suffered a recognised psychiatric illness, not merely distress, sadness, fright or other emotional disturbance: Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35. In Giller v Procopets Maxwell P held that the Wilkinson v Downton tort should be developed in the common law to permit recovery for emotional distress falling short of psychiatric illness in cases where the defendant subjectively intended to inflict such harm. This was a minority point of view. Ashley JA at [161] – [166] held that existing Australian authority precluded recovery for mental distress as distinct from psychiatric injury. Neave JA at [471] concluded that “no Australian decision positively precludes the expansion of the tort of intentional infliction of harm to cover cases in which the plaintiff suffered distress, humiliation or other forms of emotional discomfort” but was not prepared to have the court expand the common law in this respect as part of its decision in the appeal before it.

40. In Clavel v Savage [2013] NSWSC 775 Rothman J reviewed most of the cases in which Australian courts have considered Wilkinson v Downton and derived, at [36], a list of six elements. These are different in significant respects from the five which I have derived from the judgment of Wright J as set out at [33] above. With respect to Rothman J, I have not been able to satisfy myself that the subsequent cases have authoritatively confirmed the existence of the tort in these altered terms. I consider there to have been one reasonably clear development, concerning elements (ii) and (iii). Namely that, following the High Court’s decision in Tame v New South Wales the “physical harm” which the defendant’s actions must have been calculated to cause and which must have been in fact caused is limited to a cognizable psychiatric illness and will not be satisfied by mere distress, sorrow, humiliation or the like. In this I respectfully agree with the conclusion of Ashley JA in Giller v Procopets that recovery for mere mental distress is precluded in relation to this as well as other torts.

Legal principles applicable to causes of action against all defendants

41. There are two important features common to the following causes of action pleaded by the plaintiff

1. against the first defendant, based upon alleged police action which may have contributed to the 18 March 2014 recovery order having been made by the Family Court;

2. against the first defendant based upon the actions of police in enforcing that order and

3. against the second and third defendants based upon their conduct of proceeding in the Family Court.

42. The common features are that the plaintiff alleges the harm which was calculated to be caused by the defendants’ actions and which was in fact caused (1) was brought about through the making and enforcement of Family Court orders and (2) consisted of distress, anxiety and grief, without any allegation of a recognised psychiatric disorder (and without any application for leave to amend in order to confine his case on damage to psychiatric illness). The first of these features, alone, is sufficient to render the causes of action referred to at [41] not maintainable. I will identify the authorities upon which I rely for that conclusion.

43. In Cabassi v Vila (1940) 64 CLR 130; [1940] HCA 41 the appellant had claimed damages from one Ferrando for assault. Evidence given in defence of this claim by Ferrando and others was accepted in the Magistrates Court, resulting in the claim having been dismissed. An appeal from the Magistrates Court to the Supreme Court was also dismissed. The appellant then commenced a separate proceeding against the witnesses alleging they had given false evidence and had conspired with Ferrando to defraud her and to deceive the Magistrates Court, thereby obtaining judgment of that court by fraud.

44. The High Court identified two grounds upon which the appellant’s action could not be maintained. The first was that a claim for damages said to flow from a judgment given in other proceedings is necessarily an attempt to re-examine the merits of that judgment in a collateral suit and this is not permitted. The second is that a witness is privileged and immune from an action based upon evidence he or she has given. The first of these grounds is directly applicable. As to the second, it is the immunity of another class of participants in legal proceedings, namely advocates, which applies in this case (to the second and third defendants).

45. Both of the grounds in Cabassi v Vila are aspects of one overarching principle. Advocates’ immunity from suit is an aspect of the same principle. So is the rule against re-litigating a single issue decided in earlier proceedings. Such re-litigation will be stopped as an abuse of process even absent the particular requirements of issue estoppel or res judicata. The overarching principle is that once a judicial decision has been made no action may be maintained in a collateral proceeding which involves a contention that the decision was not lawfully reached, whether that contention be entailed in alleging that the consequences of the decision constituted damage, or in alleging that the decision was brought about by actionable conduct of a participant in the earlier proceeding, or in pursuing an issue decided adversely as part of the decision, or otherwise.

46. In Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16, a case concerning advocates’ immunity from suit, French CJ, Kiefel, Bell, Gageler and Keane JJ reiterated the fundamental public policy concern which, in earlier decisions, the court had identified as the determinative justification for this immunity. Namely, the public interest in the finality and certainty with which controversies are quelled by judicial decisions, against which any contention that such a decision was not reached lawfully should be precluded. That policy consideration is the foundation of the wider principle to which I have referred.

47. At [32] their Honours quoted the following passage from the judgment of the plurality in D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at p 16, [31] (some citations omitted):

Of the various factors advanced to justify the immunity, ‘the adverse consequences for the administration of justice which would flow from the re-litigation in collateral proceedings for negligence of issues determined in the principal proceedings’ was held [in Giannarelli v Wraith (1988) 165 CLR 543 ; [1988] HCA 52] to be determinative.

48. At [34] their Honours said:

[34] To speak of the exercise of judicial power to quell controversies as an aspect of government is to make it clear that the immunity is not justified by a general concern that disputes should be brought to an end, but by the specific concern that once a controversy has been finally resolved by the exercise of the judicial power of the State, the controversy should not be reopened by a collateral attack which seeks to demonstrate that that judicial determination was wrong.

49. At [35] the following was added, again with reference to what had been decided by the plurality in D'Orta-Ekenaike v Victoria Legal Aid:

The advocate’s immunity is, therefore, justified as an aspect of the protection of the public interest in the finality and certainty of judicial decisions by precluding a contention that the decisions were not reached lawfully.

50. Their Honours concluded at [36]:

The common law of Australia, as expounded in D’Orta and Giannarelli, reflects the priority accorded by this Court to the values of certainty and finality in the administration of justice as it affects the public life of the community.

51. As regards the impugning of a judgment or order by claiming in a collateral proceeding that damage flowed from it, in Cabassi v Vila Rich ACJ adopted (at p 139) a passage from the judgment of Allen J in Stevens v Rowe (1880) 47 Am Rep 231 which included the following (citations omitted):

A party cast in a judgment in a suit at law cannot maintain an action against the adverse party for suborning a witness, whose false testimony tended to produce the judgment; nor for the adverse party's fraud and false swearing, so long as the judgment remains in force. A proceeding of this kind is an attempt to re-examine the merits of a judgment in a collateral suit between the same parties. Reasons of public policy and uniform authority forbid the attacking and impeachment of a judgment in this way. The plaintiff's only remedy is an equitable proceeding to set aside the judgment, or a petition for a new trial under the statute.

52. In support of this principle Starke J said (at p 141) “I agree that the action cannot succeed unless the judgment [of the Magistrates Court] be set aside”. Williams J considered the matter on the assumption, favourable to the appellant, that she could establish the evidence of the respondents “did deceive and fraudulently mislead the court” (at p 148). On that assumption his Honour held (citations omitted):

When the statement of claim was filed there was in existence a binding judgment against the appellant in favour of Ferrando. Until rescinded the appellant could not have taken any civil proceedings against Ferrando which impugned the judgment except to challenge its validity. The appellant claims to have suffered damage because the judgment was procured by the false evidence of the defendant and his witnesses, but it is a maxim that actus legis nemini facit injuriam. While the judgment stood no averment could be permitted against it, otherwise the judgment would be “blowed off by a side wind”.

53. Williams J considered that under this principle, which his Honour took to be supported by Bynoe v. Bank of England [1902] 1 KB 467, third parties (that is persons other than the successful opponent of the plaintiff in the previous proceedings) “could not be in a worse position” than the previously successful party. His Honour continued (at 148, again with citations omitted):

The position is really analogous to that which obtains in the case of actions for malicious prosecution or for maliciously causing certain processes of a court to issue against a person or his property such as bankruptcy proceedings or the arrest of a ship. In all such cases it is essential that the plaintiff shall be able to allege in his statement of claim that the proceedings terminated in his favour. A cause of action must be complete in all respects at the date of the issue of the writ.

54. The effect of the last sentence in this passage is that it would be a necessary (but not sufficient) condition for the plaintiff’s causes of action identified at [41] to be maintainable that he should have secured the setting aside of the Family Court orders, which he says have been the instrument of mental harm, before filing his statement of claim.

55. Cabassi v Vila was applied by Giles JA (with whom Santow and Ipp JJA agreed) in Markisic v Department of Community Services of New South Wales (No 2). In that case an order had been made by a Judicial Registrar of the Family Court of Australia for the return of Mr Markisic’s child to her mother in Macedonia. This order was appealed by Mr Markisic. Pending hearing of the appeal, the Full Court of the Family Court issued a recovery order, for the child to be taken from the care of Mr Markisic and placed with the Department of Community Services (DOCS). The Full Court subsequently dismissed Mr Markisic’s appeal. The child was returned to Macedonia on a Qantas flight.

56. Mr Markisic had filed statement of claim in this Court pleading causes of action against, amongst others, DOCS. That department had been appointed by the Commonwealth of Australia as the authority in New South Wales for carrying out Australia’s obligations under a treaty concerning repatriation of children in connection with matrimonial disputes. The Director-General of DOCS had brought the original proceedings before the Judicial Registrar.

57. The State of New South Wales and the Commonwealth were also sued on the basis of vicarious liability for the actions of a number of officers who had been concerned in the Family Court proceedings and in the return of the child to Macedonia. The trustees of a foster care agency, which had introduced foster parents pending the decision of the Full Court, were joined as defendants. There were also causes of action pleaded against Qantas, against counsel for the applicant in the Family Court and against two of the judges of that court.

58. At first instance in this Court the statement of claim was struck out. The Court of Appeal upheld that decision. Giles JA held as follows:

[44] … Mr Markisic did not in his proceedings seek to set aside the orders of the Family Court in relation to [the child’s] possession and return to Macedonia. (I do not suggest that there is power in the Supreme Court to do so.) His complaint, at least in relation to the making of the orders as distinct from what was done in their implementation, was that conduct leading to the making of the orders had been wrongful as regards him, and he claimed that the harm which he suffered from the implementation of the orders whereby he suffered the loss of [the child] was caused by the wrongfulness. Here and later I refer imprecisely to wrongfulness to encompass whatever may have been Mr Markisic’s intended causes of action, such as breach of duties of care and statutory duties, misfeasance in public office and infliction of nervous shock, see earlier in these reasons.

[45] The orders of the Family Court were valid unless and until set aside, and if what was done was authorised by the orders Mr Markisic could not collaterally attack them by complaining of conduct whereby they were obtained, or say that any harm he suffered was caused by wrongfulness in the conduct leading to the making of the orders.

59. For these conclusions his Honour cited the passages I have quoted from the judgments of Rich ACJ and Williams J in Cabassi v Vila and a judgment of Hodgson JA in Cachia v Westpac Financial Services Ltd [2005] NSWCA 239 at [2]. After those citations His Honour concluded:

[50] Mr Markisic did not claim as damages the loss of the value of a cause of action, but the damages he claimed all came back to his loss of [his child]; and that loss, if authorised by the orders of the Family Court (and subject to their proper implementation), is not a loss of which he can complain. A cause of action for breach of a duty of care or statutory duty or other alleged wrongfulness in the conduct leading to the making of the orders can not be maintained while the orders remain.

60. The Wilkinson v Downton tort was not under consideration in Markisic v Department of Community Services of New South Wales (No 2). However it can be seen that Giles JA’s application of the principle from Cabassi v Vila was entirely independent of the classification or character of the tort alleged in the subsequent proceeding.

61. It has been mentioned that the “reasons of public policy and uniform authority [which] forbid the attacking and impeachment of a judgment in this way” (in the words of Rich ACJ) inform the rule by which a party is prohibited from re-litigating a single issue decided against him or her by a court of competent jurisdiction in earlier proceedings against a different party. This prohibition applies where the issue was joined and was treated as important by the parties to the previous litigation and where its determination was significant to the result: Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198; [2001] NSWCA 142; IEL Finance Ltd v Commissioner of Taxation [2010] FCA 898.

62. In the present case the plaintiff seeks damages upon the basis that the orders of the Family Court were wrongful and that their impact upon him therefore constitutes compensable damage. It is not open to him to claim damages on a ground thus calling into question the validity of the orders, any more than it would be open to him to litigate any single issue decided against him as part of the foundation of those orders.

Additional legal principles applicable to second and third defendants

63. The causes of action pleaded against the second and third defendants are not maintainable for the specific and particular reason that those defendants are protected by the advocate’s immunity from suit, upheld by the High Court in in D'Orta-Ekenaike v Victoria Legal Aid and in Attwells v Jackson Lalic Lawyers Pty Ltd. This bar to the proceedings is an aspect of the principle discussed under the preceding heading at [43] – [60]. The “determinative” policy ground upon which the law recognises the immunity, that to do otherwise would permit the reopening of controversies settled by judgments given in proceedings in which the advocates’ work was performed, was considered extensively in D'Orta-Ekenaike v Victoria Legal Aid at [45], [73], [74], [79], [80].

64. D'Orta-Ekenaike v Victoria Legal Aid was concerned with an action brought by the client in the earlier proceedings against the advocate who represented him. The policy reasons given by the court for holding that such an action could not be maintained are equally applicable to proceedings brought against the advocate by the party to whom the advocate was opposed in the earlier case (as here) or by any other person who might claim to have suffered loss from the result. The immunity does not depend upon the relationship of the advocate to the claimant who subsequently seeks damages based upon the manner in which the earlier case was conducted. It depends only upon the advocate’s status as such in the earlier proceeding and the fact that the claim against the advocate is necessarily premised upon the proposition that the decision in that proceeding was wrong.

65. This was expressed simply in Cabassi v Vila by Starke J (at p 140) when his Honour grouped all participants in legal proceedings as enjoying the same privilege or immunity:

No action lies in respect of evidence given by witnesses in the course of judicial proceedings, however false and malicious it may be, any more than it lies against judges, advocates or parties in respect of words used by them in the course of such proceedings or against juries in respect of their verdicts.

66. In D'Orta-Ekenaike v Victoria Legal Aid at [86] Gleeson CJ, Gummow, Hayne and Heydon JJ formulated the scope of activity protected by the advocate’s immunity from suit as including work in court and “work done out of court which leads to a decision affecting conduct of the case in court”. Their Honours considered an alternative formulation, “work intimately connected with work in Court” as not differing in any significant way. The immunity is not limited to lawyers practising as counsel. It extends to solicitors providing advocacy (which was the role of both the second and third defendants in the Family Court) and to solicitors giving advice relative to proceedings. Their Honours said:

[90] Because the immunity now in question is rooted in the considerations described earlier, where a legal practitioner (whether acting as advocate, or as solicitor instructing an advocate) gives advice which leads to a decision (here the client's decision to enter a guilty plea at committal) which affects the conduct of a case in court, the practitioner cannot be sued for negligence on that account.

67. It is clear from the plaintiff’s statement of claim as filed, from the proposed amended pleading and from his submissions on the notice of motion that the wrongdoing he alleges against the second defendant is said to have occurred in the course of her appearing in the Family Court on 18 March 2014 when she applied for the recovery order and in her pursuit on behalf of Ms Dickens, on subsequent dates, of orders which precluded the plaintiff from having access to his sons. The evidence he has tendered includes transcripts and judgments which bear out that the second defendant acted for the former wife as an advocate in the proceedings. The plaintiff’s claims in this Court are therefore not maintainable against her.

68. Division 10 of Pt VII of the Family Law Act1975 (Cth) contains a provision for independent representation of the interests of children in proceedings under the Act “in which a child’s best interests are, or a child’s welfare is, the paramount, or a relevant, consideration” (see s 68L). It is alleged by the plaintiff that everything done by the third defendant in the Family Court proceedings, of which the plaintiff complains and for the outcome of which he seeks damages, was done under an appointment of the third defendant pursuant to s 68L. The part of the section providing for such appointment is in these terms:

(2)   If it appears to the court that the child's interests in the proceedings ought to be independently represented by a lawyer, the court:

(a) may order that the child's interests in the proceedings are to be independently represented by a lawyer; and

(b) may make such other orders as it considers necessary to secure that independent representation of the child's interests.

69. By force of this section, upon appointment the third defendant was obliged to represent “the interests” of the plaintiff’s sons, rather than the sons themselves. His role was defined by the following section:

68LA Role of independent children's lawyer

When section applies

(1) This section applies if an independent children's lawyer is appointed for a child in relation to proceedings under this Act.

General nature of role of independent children's lawyer

(2) The independent children's lawyer must:

(a) form an independent view, based on the evidence available to the independent children's lawyer, of what is in the best interests of the child; and

(b) act in relation to the proceedings in what the independent children's lawyer believes to be the best interests of the child.

(3) The independent children's lawyer must, if satisfied that the adoption of a particular course of action is in the best interests of the child, make a submission to the court suggesting the adoption of that course of action.

(4) The independent children's lawyer:

(a) is not the child's legal representative; and

(b) is not obliged to act on the child's instructions in relation to the proceedings.

Specific duties of independent children's lawyer

(5) The independent children's lawyer must:

(a) act impartially in dealings with the parties to the proceedings; and

(b) ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the court; and

(c) if a report or other document that relates to the child is to be used in the proceedings:

(i) analyse the report or other document to identify those matters in the report or other document that the independent children's lawyer considers to be the most significant ones for determining what is in the best interests of the child; and

(ii) ensure that those matters are properly drawn to the court's attention; and

(d) endeavour to minimise the trauma to the child associated with the proceedings; and

(e) facilitate an agreed resolution of matters at issue in the proceedings to the extent to which doing so is in the best interests of the child.

Disclosure of information

(6)   Subject to subsection (7), the independent children's lawyer:

(a) is not under an obligation to disclose to the court; and

(b) cannot be required to disclose to the court;

any information that the child communicates to the independent children's lawyer.

(7)   The independent children's lawyer may disclose to the court any information that the child communicates to the independent children's lawyer if the independent children's lawyer considers the disclosure to be in the best interests of the child.

(8)   Subsection (7) applies even if the disclosure is made against the wishes of the child.

70. Again with respect to the third defendant the plaintiff’s allegations against him are all based upon his actions performed as advocate in the role of Independent Children’s Lawyer under the above sections. The transcripts and judgments in the Family Court record that he performed this role as an advocate. The special nature of his role under the legislation does not deny him the status of a participant in the proceedings protected by privilege and immunity like other participants. The policy reasons for protection of advocates from subsequent litigation, as discussed in D'Orta-Ekenaike v Victoria Legal Aid and Atwell’s v Jackson Lalic Lawyers, are not rendered inapplicable by the terms of his statutory role.

Plaintiff’s notice of motion

71. The plaintiff filed a notice of motion on 14 July 2017 which was heard together with the defendants’ notices of motion. He sought, firstly, three orders by which he would be granted leave to file an amended statement of claim and subsequently to make “any further amendments … the Court may deem necessary, … on a paragraph by paragraph basis”. As the case which the plaintiff wishes to advance against the second and third defendant’s is fundamentally flawed in the respects identified in these reasons it is not appropriate to grant leave to file an amended statement of claim against them. I will grant leave to file an amended statement of claim against the first defendant, not including any allegation of wrongful conduct in procuring or enforcing orders of the Family Court and not including any claim for damage caused directly or indirectly by such orders.

72. By paragraphs 4 and 5 of the plaintiff’s notice of motion he has sought orders regarding the extent to which publication of evidence in these proceedings should be prohibited pursuant to the Court Suppression and Non-publication Orders Act. I have dealt with that subject at [5] and [6]. I propose to dismiss the plaintiff’s notice of motion in this respect, also.

Orders

73. For the above reasons I make the following orders:

Further vary the orders made by Justice Davies in chambers on 8 June 2017 to the extent that the names of the second and third defendants may be published and that in anything published with respect to these proceedings those persons need not be referred to the pseudonyms applied by his Honour.

On the first defendant’s amended notice of motion filed 26 June 2017:

1. Pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) the statement of claim filed 6 March 2017 is struck out.

2. Leave is granted to the plaintiff to file and serve on the first defendant within 14 days an amended statement of claim not including any cause of action alleging wrongful conduct in causing the making of or enforcement of any orders of the Family Court of Australia or alleging damage caused directly or indirectly as a result of the making or enforcement of such orders.

3. If the first defendant intends to press its application for order 1 sought in its notice of motion (namely, that the proceedings be dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW)) notice to that effect must be given in writing to the plaintiff within 14 days after receipt of any amended statement of claim filed in accordance with order (2) above and the first defendant must at the same time request the Registrar to relist the notice of motion for directions and notify the plaintiff of the listing date.

4. The plaintiff is to pay the first defendant’s costs of the notice of motion up to and including the making of these orders.

On the second defendant’s amended notice of motion filed 14 July 2017:

5. Pursuant to r 13.24 of the Uniform Civil Procedure Rules 2005 (NSW) the proceedings as against the second defendant are dismissed.

6. The plaintiff is to pay the second defendant’s cost of the proceedings.

On the third defendant’s amended notice of motion filed in court on 13 July 2017:

7. Pursuant to r 13.24 of the Uniform Civil Procedure Rules 2005 (NSW) the proceedings as against the third defendant are dismissed.

8. The plaintiff is to pay the second defendant’s costs of the proceedings.

On the plaintiff’s notice of motion filed 14 July 2017:

9. The plaintiff’s notice of motion is dismissed.

10. The plaintiff is to pay the defendants’ costs of the motion.

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Amendments

05 September 2017 - [36], [37], [38] - delete 'Spiegelman' substitute 'Spigelman'

[51] - insert 'in Cabassi v Vila' before Rich ACJ

05 September 2017 - [73](4) - delete 'as' substitute 'is'

Decision last updated: 05 September 2017